Slip and Fall Accidents—the Changing Law in Massachusetts

Not long ago, Angela Sarkisian joined her girlfriends for a bachelorette party at the Boston nightclub, Liquor Store. The Liquor Store included a wooden dance floor, two bars on the dance floor and to the rear of the dance floor, two steps leading to the lounge area. Guests were permitted to bring drinks onto the dance floor.

As the night progressed, the club became busy and the dance floor crowded. The lighting was dim and strobe lights flashed on the dance floor.

Around 1:30 AM (oh to be young) Angela went in search of friends and walked up the two steps to the lounge area. Not finding anyone, she walked back down the steps to the dance floor, took a few steps onto the floor and slipped in a small liquid puddle (presumably a spilled drink) and fell, breaking her leg in two places. Ms. Sarkisian sued the Liquor Store for her injuries. Sarkisian v. Concept Restaurants, Inc., 86 Mass. App. Ct. 1116 (Mass. App. Ct. 2014).

To win a slip and fall case like this in Massachusetts, Angela would have to establish liability of the nightclub by proving three things:

The spilled drink caused her to slip;

The spilled drink was on the floor prior to her falling; and

The Nightclub caused the drink to be on the floor or knew the drink had been spilled and had time to clean it up, but failed to do so.

These factors were a problem to prove because of the timing of Angela’s trip to the lounge and back to the dance floor.

Angela tried to take advantage of an evolving trend relaxing the third requirement that makes it easier to sue for a slip and fall. This trend comes from accidents in self-service grocery stores. The store can be responsible if it’s “mode of operation” creates a foreseeable risk and the owner failed to undertake adequate measures to protect guests or shoppers.

This new trend arises because so many grocery stores are now “self-serving”. Nearly every store has a few “self-checkout” lanes and some are total self-checkout. This is true whether shopping on the North Shore at a local MarketBasket or DeMoulas Market, or in a bigger chain in Massachusetts, such as Stop & Shop. The stores are often tightly packed with bright displays stacked high with goods, and colorful signs. We are on our own to find goods and check ourselves out at the register (been to a NorthShore Home Depot lately?); and the old style where clerks personally assisted customers throughout the store, is disappearing.

This change presents new hazardous situations and makes it more difficult to ensure a safe shopping environment because customers are distracted by the displays and less likely to be looking at the floor for spills or hazards. Nevertheless, the store owner must use a reasonable degree of care to counterbalance the new risks; Sheehan v. Roche Bros. Supermarkets, Inc., 448 Mass. 780, 784 (2007), and the law is evolving to match these changes.

The changing rules mean that today a grocery store owner will be liable for injuries from a slip and fall if he or she could have anticipated a risk and failed to put proper safeguards into effect.

Angela Sarkisian tried to expand this to her situation and apply this new standard of care to the Nightclub where she got hurt. The Court, however, declined to do so. The Court in her case ruled that the night club was not a “self-service” establishment and Angela had to prove that the Liquor Store caused the drink to be on the floor or that the club knew the drink had been spilled and had time to clean it up, but failed to do so. So a valiant effort but it didn’t work out. But as you can see, as our lives and shopping habits change; the law evolves with it.

If you slip and fall while dancing the night away or while shopping at your local grocery store, know your rights and be sure to speak with a slip and fall attorney who is current with the changes in the legal standards.